On behalf of the defendant-appellant, the cause was
submitted on the briefs of Jo C. Vandermause of Appleton.

Respondent

ATTORNEYS:

On behalf of the plaintiff-respondent, the cause was
submitted on the brief of Peggy A. Lautenschlager, attorney general,
and Jeffrey J. Kassel, assistant attorney general.

2005 WI
App 202

COURT OF APPEALS

DECISION

DATED AND FILED

August 16, 2005

Cornelia G. Clark

Clerk of Court of Appeals

NOTICE

This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal Nos.

2004AP2176-CR

2004AP3031-CR

Cir. Ct. No.2003CF874

STATE OF WISCONSIN

IN COURT OF
APPEALS

State of Wisconsin,

Plaintiff-Respondent,

v.

Timothy J. Johnson,

Defendant-Appellant.

APPEAL
from judgments and an order of the circuit court for Brown County:MARK
A. WARPINSKI, Judge.Affirmed.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶1CANE, C.J. Timothy Johnson appeals judgments
ordering him confined in the county jail for consecutive nine-month periods as
a condition of probation and an order denying his motion for postconviction
relief.Johnson argues the trial court
had no statutory authority to order consecutive periods of conditional jail
time.He argues alternatively that
requiring him to serve a total of eighteen months in jail as a condition of
probation violates Wis. Stat. § 973.09(4)(a),
which gives trial courts the authority to order jail time “during such period
of the term of probation as the court prescribes, but not to exceed one year.”[1] Because
Johnson is serving separate probationary terms, we reject his arguments and
affirm the judgments and order.

Background

¶2On September 26, 2003, Johnson entered a no contest plea to
one count of failure to pay child support.Several weeks later, on November 10, 2003, Johnson pled guilty to two
counts of delivery of cocaine.[2]He was found guilty in both cases on the
respective days on which he entered his pleas.He was not sentenced for either crime, however, until January 24,
2004.At that time, the trial court
withheld sentence on the child support conviction, placing Johnson on probation
for five years.As a condition of
probation, Johnson was ordered to serve nine months in the county jail.The court also withheld sentence on both
drug counts, placing Johnson on probation for twelve years.As a condition of probation, Johnson was
ordered to serve nine months in the county jail.Finally, the trial court ordered that the terms of probation in
the drug cases and the child support case be concurrent, but made the periods
of conditional jail time consecutive to each other.Johnson was thus required, as a condition of probation, to serve
a total of eighteen months in the county jail.[3]

¶3Johnson filed a motion for postconviction relief in the drug
cases, arguing that the second nine months of jail time was an unlawful
condition of probation.After a
hearing, the trial court orally denied his motion.[4]Johnson now appeals.

Discussion

¶4When we interpret a statute, our goal is to ascertain and
give effect to its intended purpose.See,
e.g., Wenke v. Gehl Co., 2004 WI 103, ¶32, 274 Wis. 2d 220, 682
N.W.2d 405.To achieve that goal, we
begin with the language of the statute.State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110.If
the meaning of the statute is clear when we give its words their commonly
accepted meanings, we ordinarily stop the inquiry.Id. Context
and the structure of the statute in which the questioned language appears may
also be critical to establishing the meaning of particular words and
phrases.Id., ¶46.The language of a statute is not
interpreted in isolation, but as part of a larger text, and in relation to the
language of surrounding or closely related statutes.Id.

¶5 A statute is ambiguous, according to the most common
formulation of the test, if it is capable of being understood by reasonably
well-informed persons in two or more senses.Id.,¶47.To resolve ambiguity in a statute’s language, we may move beyond the
text of the statute to extrinsic evidence about the scope, history, context,
and purpose of the statute.See State
ex rel. Cramer v. Schwarz,2000 WI 86, ¶18, 236 Wis. 2d
473, 613 N.W.2d 591.But our aim
remains the same: to determine what the statute means so it can be given
its full, proper, and intended effect.Kalal,
271 Wis. 2d 633, ¶44.

¶6Johnson argues first that the trial court had no authority to
order, as a condition of probation, two consecutive periods of jail time.The State counters that a trial court has
the power “to impose any conditions [of probation] which appear to be
reasonable and appropriate.”Wis. Stat. § 973.09(1)(a).That broad discretion is constrained, the
State further asserts, only to the extent that a probation condition is
expressly or specifically limited by another statute.See State v. Oakley, 2000 WI 37, ¶¶26-27, 234
Wis. 2d 528, 609 N.W.2d 786.

¶7On that limited point, we agree with the State.Under Wis.
Stat. § 973.09(4)(a), trial courts have the explicit authority to
require a probationer to be confined in the county jail “during such period of
the term of probation as the court prescribes.”We have concluded elsewhere that the authority to impose
conditional jail time includes the authority to stay time as well as the
authority to fix the specific time a probationer must spend in jail.State v. Edwards, 2003
WI App 221, ¶¶11-12, 22, 267 Wis. 2d 491, 671 N.W.2d 371.The principles of Edwards thus
dictate that a trial court also has the power to delay imposing conditional
jail time until after some other event, such as a program or another period of
conditional jail time, has occurred.

¶8The problem here is therefore not when the periods of
conditional jail time were imposed, but how long the total period of
confinement is.The court’s authority
to impose jail time as a condition of probation is expressly limited to “such
period of the term of probation as the court prescribes, but not to exceed one
year.”Wis. Stat. § 973.09(4)(a).The State argues that the one-year limit on conditional jail time
does not apply in this case because Johnson is not serving a single
probationary term.Johnson contends
that the phrase “term of probation” refers to a single period of probation
associated with multiple convictions at the same time.He further contends that he was convicted at
the same time for the drug and child support cases because he was sentenced on
the same day in both cases.

¶9The language of Wis.
Stat. § 973.09, the general probation statute, supports Johnson’s
contention that the phrase “term of probation” refers to a single unit of time
that may be extended to reflect multiple convictions.The statute provides that the original term of probation for
misdemeanors shall be “not less than 6 months nor more than 2 years,” Wis. Stat. § 973.09(2)(a)1., while
the original term of probation for felonies is “not less than one year nor more
than either the maximum term of confinement … or 3 years.”Wis.
Stat. § 973.09(2)(b)1.If
the probationer is convicted of multiple[5]
misdemeanors at the same time, the maximum original term of probation may be
increased by a year.Wis. Stat.
§ 973.09(2)(a)2.Similarly,
if a probationer is convicted of two or more crimes, including at least one
felony, at the same time, the maximum original term of probation may be
increased by one year for each felony conviction.Wis. Stat. §
973.09(2)(b)2.If Johnson was
convicted at the same time in his drug and child support cases, those crimes
would, as the State apparently concedes, give rise to a single “term of
probation,” which in turn would mean that the one-year limit on conditional
jail time applied to that term.

¶10Thus, the critical question is whether Johnson was convicted at
the same time in the drug and child support cases.To answer that question, we must decide whether conviction
occurs, for the purposes of Wis. Stat. §
973.09, at the time a guilty plea is entered or at the time of sentencing and
the entry of judgment.

¶11Johnson argues that the word conviction is ambiguous.Like courts in other jurisdictions, Wisconsin courts have repeatedly recognized that conviction
can refer either to the finding of guilt or to the entire procedural process
resulting in a judgment and sentence.[6]See, e.g., State v. Wimmer,
152 Wis. 2d 654, 658, 449 N.W.2d 621 (Ct. App. 1989).Because Wis. Stat. § 973.09 neither defines conviction nor clearly
indicates which meaning of conviction is intended, we conclude that conviction
is ambiguous in the probation statute as well.To resolve that ambiguity, we look
both to extrinsic evidence of legislative intent and to our interpretation of
the word conviction in similar or related statutes.

¶12The legislative history of the provisions provides little
insight into what the legislature intended when, in 1965, it first granted
trial courts the authority to impose jail time as a condition of probation.[7]There is no discussion of the new provision,
which sets out the parameters for ordering conditional jail time that still
govern trial courts today:

[t]he court may also require as a condition of
probation that the probationer be confined in the county jail between the hours
or periods of his employment during such portion of his term of probation as
the court specifies, but not to exceed one year.

Wis. Stat. § 973.09(4)(a)
(1965).Nor are there any drafting
records or revisions that might clarify the purpose of adding jail time to the
broad array of conditions that can be imposed on probationers.At the time the provision was added, the
probation statute contained no reference to multiple convictions.It simply set out the temporal parameters of
the probationary period: “[t]he original term of probation shall not be less
than one year nor more than either the statutory maximum … or 3 years,
whichever is greater.”Wis. Stat. § 57.01(3) (1965).

¶13In the late 1960s, as part of a
complete reworking of Wisconsin criminal procedure, the probation statute was
revised to give trial courts the authority to make the period of probation
consecutive to a sentence on a different charge whether “imposed at the same
time or previously.”[8]
The revised statute also clarified how a “term of probation” was to be
calculated.Under what now became Wis. Stat. § 973.09(2) (1969),
“the original term of probation shall be: (a) For misdemeanors, not more
than two years; (b) For felonies, not less than one year nor more than either
the statutory maximum … or 3 years.”

¶14Wisconsin.
Stat. § 973.09(2) was revised again in
1983 to allow trial courts to increase the original term of probation when
there were multiple convictions at the same time.[9]Analysis by the Legislative Reference Bureau
indicates the revision was a response to a decision of this court and an
Attorney General’s Opinion,[10]
both of which said courts could not impose consecutive periods of probation
when a defendant was “convicted” of multiple crimes at the same time.Comments on the estimated cost of this
change explain: This legislation is intended to place an offender on
probation for a longer period of time if there are multiple misdemeanor or
felony convictions.[11]

¶15The legislative
history thus indicates a clear intent to increase the length of the
probationary period for convictions at the same time, but provides no insight
into what the legislature meant by conviction.Thus, we turn to our interpretation of the term in other statutes.

¶16In Wimmer,
we found conviction ambiguous, and concluded that it meant adjudication of
guilt for the purposes of the repeat offender statute.See Wimmer, 152 Wis. 2d
at 659.Although we declined to make a
“blanket pronouncement” about whether that definition applied to other penal
statutes, we noted a preference, supported by supreme court dicta, for the more
popular meaning of adjudication of guilt.[12]Id. at 658-59.We found “most persuasive” the legislative
history of the repeater statute, a history clearly indicating an intentional
shift in the focus of the statute from past sentence to past crime.Id. at 661-62.Because prior sentencing had become
irrelevant for the purposes of the statute, we determined that it made no sense
to interpret conviction as referring to sentencing.Id. at 662-63.

¶17Using similar logic, we have also determined that conviction
occurs upon adjudication of guilt for the purposes of the sentencing guideline
scoresheets.State v. Smet,
186 Wis. 2d 24, 29-30, 519 N.W.2d 697 (Ct. App. 1994) (noting we saw “no
reason” to deviate from Wimmerand that consistency promotes
certainty and a uniform application of the law).Finally, an accepted guilty plea constitutes a conviction for
the purposes of impeachment testimony under Wis.
Stat. § 906.09(1).State
v. Trudeau, 157 Wis. 2d 51, 54, 458 N.W.2d 383 (Ct. App.
1990).In that case, we drew specific
parallels with Wimmer—it is the criminal act, not the sentence or
punishment, that is the basis for the impeachment—and
therefore decided the question not by reference to legislative history but
based on the policies implicated by the statute.Trudeau, 157 Wis. 2d at 53-54.

¶18Conviction has
been defined differently, however, in other contexts.In termination of parental rights proceedings, for example, we
concluded that conviction means a conviction “after the right of appeal has
been exhausted.”In re Kody D.V.,
200 Wis. 2d 678, 681, 548 N.W.2d 837 (Ct. App. 1996).Our decision there rested primarily on the
parent’s fundamental liberty interest in not being deprived of a child, and the
statute’s concern with balancing the child’s and the parent’s interests.We have also concluded that “a conviction
does not occur until a sentence is imposed” for the purposes of calculating the
number of convictions for operating while intoxicated.State v. Matke,2005 WI
App 4, ¶12, 278 Wis. 2d 403, 692 N.W.2d 265.

¶19Johnson argues
that, in the absence of guidance from the legislative history, we must construe
Wis. Stat. § 973.09 strictly
against the State and in favor of the milder penalty.See State v. Morris, 108 Wis. 2d 282, 289, 322
N.W.2d 264 (1982).We are not
persuaded.

¶20As we observed
elsewhere:

[t]he rule of strict construction does not mean that
only the narrowest possible construction must be adopted in disregard of the
statute’s purpose.A statute should be
construed to give effect to its leading idea and should be brought into harmony
with its purposes.

State v. O’Neil,
141 Wis. 2d 535, 540, 416 N.W.2d 77 (Ct. App. 1987).Wisconsin
Stat. § 973.09(4)(a) allows trial courts the option of using jail
time as one of the conditions of probation to pursue the goals of probation,
including rehabilitation.See State
v. Avila, 192 Wis. 2d 870, 881-82, 532 N.W.2d 423 (1995).That option is limited by statute to a
maximum of one year for each term of probation.A term of probation is determined, as the probation statute
mandates, by working from a base “original term” and lengthening the original
term for multiple simultaneous convictions.We see no reason, however, to expand the number of convictions
potentially encompassed by a single “term of probation” by construing
“convicted at the same time” to mean sentenced at the same time.Such a reading could, among other things,
encourage parties to manipulate court schedules for the purpose of stacking
sentencing hearings.We also agree with
the State that consistency supports reading § 973.09
as we have read other sentencing statutes, and interpreting conviction
as referring to the adjudication of guilt.Because we conclude that Johnson was not convicted at the same time in
the child support and drug cases, and therefore not serving a single probationary
term, the trial court had the statutory authority to order consecutive periods
of conditional jail time.

By
the Court.—Judgments and order affirmed.

[1] All
references to the Wisconsin Statutes are to the 2003-04 version unless
otherwise noted.

[2] Johnson was
originally charged with two counts of cocaine delivery within one thousand feet
of a park, maintaining a drug trafficking place, possession of THC, and
possession of drug paraphernalia.Under
the terms of his plea agreement, the park enhancers were dropped and the other
charges dismissed.

Probation.(1) (a) Except as provided in par. (c) …
if a person is convicted of a crime, the court, by order, may withhold sentence
or impose sentence under s. 973.15 and stay its execution, and in either case
place the person on probation to the department for a stated period, stating in
the order the reasons therefor.The
court may impose any conditions which appear to be reasonable and appropriate.The period of probation may be made
consecutive to a sentence on a different charge, whether imposed at the same
time or previously….

….

(2)
The original term of probation shall be:

(a)
1. Except as provided in subd. 2., for misdemeanors, not less than 6 months nor
more than 2 years.

2.
If the probationer is convicted of not less than 2 nor more than 4
misdemeanors at the same time, the maximum original term of probation may be
increased by one year. If the probationer is convicted of 5 or more
misdemeanors at the same time, the maximum original term of probation may be
increased by 2 years.

a. 1.
Except as provided in subd. 2., for felonies, not less than one year nor more
than either the maximum term of confinement in prison for the crime or 3 years,
whichever is greater.

2.If
the probationer is convicted of 2 or more crimes, including at least one
felony, at the same time, the maximum original term of probation may be
increased by one year for each felony conviction.

….

(4) (a) The court may also require as a
condition of probation that the probationer be confined during such period of
the term of probation as the court prescribes, but not to exceed one year.

[4] Johnson
originally filed a notice of appeal with regard to that denial, but this court
concluded, on September 23, 2004, that we could only review the judgment
of conviction because no written order denying the postconviction motion had
been entered.A written order denying
Johnson’s original postconviction motion was entered in November 2004, Johnson
filed a second notice of appeal, and we consolidated the appeals in the drug
and child support cases.

[5] Multiple
here means not less than two misdemeanors nor more than four.See Wis.
Stat. § 973.09(2)(a)2.

[12] The State
suggests that we have effectively done just that.The cases it cites in support of that proposition do not support
such a characterization, however; they rather reiterate the essential point
that Wimmer controls the meaning of conviction in the repeater
statutes.See, e.g.,State
v. Watson, 2002 WI App 247, ¶11, 257 Wis. 2d 679, 653 N.W.2d 520; see
also State v. Wimmer, 152 Wis. 2d 654, 664, 449 N.W.2d 621 (Ct. App.
1989).